BRIJ KISHORE RAI Vs. LAKHAN TEWARI

JUDGEMENT

(1.) THIS second appeal arises out of a suit whereby the plaintiff claimed a money decree against the defendant on the ground that the latter had borrowed certain amounts from the former. The plaintiff claimed the principal sum of Rs. 2000 with interest at the rate of 18% per annum. The defence was that there was, in reality, no borrowing and that the document, on which the plaintiff placed reliance, (which has been described as a Sarkhat) was executed by the defendant but with some different purpose and not as evidencing the alleged borrowings set up by the plaintiff. It was also contended that the document in question relied on by the plaintiff really amounted to a pronote in law and was inadmissible in evidence on account of deficiency of stamp.

(2.) THE trial court framed the necessary issues, tried the suit and decreed the same. An appeal filed in the lower appellate court failed and now the defendant has come up in the instant second appeal and in support thereof Sri V. K. S. Chaudhary, learned counsel for the defendant-appellant, has raised the following contentions before me :- (1) His client was entitled to the benefit of U. P. Ordinance No. 13 of 1977. Time was granted to the learned counsel to get the necessary instructions from his client on 29th July, 1977. However, no such application has been moved, as was directed to be filed in case the defendant-appellant wanted to take the aid of the said Ordinance. THE learned counsel has conceded before me today that his client is, therefore, not entitled to seek the advantage of the said Ordinance. (2) It was next contended that the document in question was a pronote and, as such, a negotiable instrument in law. It was also contended that in view of its being a pronote, it was not properly stamped and, therefore, inadmissible in evidence under the Stamp Act. It was also argued that as it was a negotiable instrument therefore, under S. 80 of the Negotiable Instruments Act, the defendant- appellant was not liable to pay interest at more than 6% per annum in view of the fact that the document was silent in regard to the interest. (3) THE third contention was that no interest was payable by the defendant-appellant when the document did not make any mention about any interest and it was contended that the plaintiff was not entitled to lead oral evidence on the question of the alleged contractual rate of interest. In this connection, counsel referred to S. 92 and its second proviso in the Evidence Act.

(3.) I also do not agree with the learned counsel that the document in question is a pronote. In S. 4 of the Negotiable Instruments Act, a pronote is defined as follows :- " 4. ' Promissory note' . - A ' promissory note' is an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument."